Since last week’s judgment in Smith – in which the Court of Appeal ruled that the Human Rights Act, in particular article 2, applies to British troops even on the battlefield, I’ve been thinking about the judgment (one reason why I’ve not blogged for several days) and I’m troubled by it. The Court’s conclusion – that British forces themselves are always personally within British jurisdiction, regardless of whether they’re within an area subject to British authority, and are therefore protected by the ECHR from violations by the UK, including breaches of the right to life on the battlefield – may be vindicated one day in Strasbourg. I’m not sure. But the real puzzle here is why the Administrative Court and the Court of Appeal have thought fit to make such a ruling themselves in this case, and how they’ve come to the conclusion they have. The point is entirely hypothetical, and it’s neither necessary nor desirable for the courts to rule on it now. They’ve departed from authority, too.

The case is about the death of Private Jason Smith, who died of heatstroke on a British base in Basra. He was not killed on the battlefield or in conflict. The government concedes that in these circumstances, the article 2 Convention right to life applied to him, based on the decisions of the ECtHR in Bankovic and the House of Lords in Al-Skeini. The UK is clearly has authority and control on UK bases abroad; therefore, the inquest into Private Smith’s death should comply with the procedural requirement of an investigation following a death subject to article 2. So much was agreed in the Administrative Court – and you might think that was the end of the case.

But no. At first instance, Collins J was persuaded by counsel for Private Smith’s mother to decide whether British forces enjoy Convention rights wherever they might be – even though on the facts of the case the point is entirely academic. He decided, in a poorly reasoned passage (paras. 7-20 of his judgment) that they do. I say “poorly reasoned” because, firstly, Collins J does not explain why he considers it desirable to answer the question; secondly because the parallels he draws with employment law (para. 16) and courts martial (para. 17) are not good ones. In the employment situation we are normally dealing with contracts subject to domestic law, and courts martial always necessarily take place where the UK military courts have authority.

It also seems to me his ruling on the point is wrong, and arguably per incuriam in that it’s clearly at odds with the approach of the House of Lords in Al-Skeini. In that case the Lords, while divided on the scope of application of the Human Rights Act, unanimously took the view that it was wrong for a British court to extend the scope of application of the ECHR beyond what Strasbourg case-law clearly requires in a way that would affect other states. The best possible example of such a ruling would be to apply the ECHR on a personal basis to troops wherever they are in the world, even in conflict – as Collins J did. Extraordinarily, he cited Lord Rodger’s speech in Al-Skeini in support of his approach, although it’s clear that, at the relevant point in his speech (paras. 37-59) Lord Rodger was dealing with a different point, namely whether the Human Rights Act can apply at all in Iraq. It’s quite clear that Lord Rodger’s approach to Bankovic (paras. 60-81) does not support Collins J; on the contrary.

An unnecessary and bad decision, then. Yet the Court of Appeal has compounded the difficulty. Again, it cites Lord Rodger in Al-Skeini in support of its judgment, yet it ignores the key passage in his speech in which he rejected any extension of Strasbourg’s essentially territorial approach to the application of the Convention. The Court of Appeal considers itself bound by Lord Brown’s analysis of Bankovic (see para. 21 of the Court of Appeal’s judgment) at para. 109 of his speech, yet it ignores paras. 105-107 and 127-129 of his speech, which clearly reject anything other than a narrow, territorial approach to jurisdiction. The Court of Appeal’s support for a personal basis of jurisdiction simply cannot be reconciled with the clear reasoning of the House of Lords in Al-Skeini; and in the face of that authority it is simply not good enough for the Court of Appeal to say it is answering the relevant questions in a broad and commonsense way (para. 28). The resort to that kind of justification in itself demonstrates that the Court of Appeal has fallen well below the level of legal analysis required.

And quite apart from the bad legal analysis both courts have relied on, the utterly absurd nature of this judicial exercise is shown by paragraph 27 of its judgment, in which the Court says it is assuming for the purposes of its judgment that Private Smith – contrary to the true facts – died outside a British base.

The upshot is that we have a badly-reasoned, wrong appeal ruling on a purely hypothetical legal point which has never actually arisen. Nothing could be more Dickensian. This is an unjustified, wrong-headed judicial frolic, and I hope the Lords puts the genie back in its box. The question whether troops are entitled to human rights protection in battle should be settled when a real case arises, and preferably in Strasbourg.

Something else I’ve been thinking about is the precedent value of the Court of Appeal’s judgment as it stands, pending the Lords appeal. I’ve already said I think it may be per incuriam; if I’m right about that, it’s no precedent at all. Some might say the per incuriam rule doesn’t strictly apply, as the Court was neither ignorant nor forgetful of Al Skeini but purported, however wrongly, to apply it. Fair enough. In any event, though, as was once written by Professor Llewellyn (as cited in Cross and Harris’s Precedent in English Law):

There is a distinction between the ratio decidendi, the court’s own version of the rule of the case, and the true rule of the case, to wit what it will be made to stand for by another later court.

And as the editors of that book say on the previous page:

There are… many instances in which the rule of law forming the basis of a decision ceases to be the rule of law for which the case is binding authority because judges in later cases have… [interpreted]… the decision in the light of the facts of the case and other relevant judgments. …. The process of interpretation is most likely to occur when the original ratio decidendi was a wide one for, to quite Professor Glanville Williams, “Courts do not accord to their predecessors an unlimited power of laying down wide rules”.

No doubt the Court of Appeal’s version of its own ratio is the wide rule that British troops are always personally subject to the ECHR; in the light of the facts of the case itself and all other applicable authorities, however, that simply cannot be maintained as the true rule of the case. Before the House of Lords rules, and with any luck reverses it, the wide rule laid down in the appeal judgment should not be followed.